Citation NR: 9730343
Decision Date: 09/02/97 Archive Date: 09/11/97
DOCKET NO. 95-32 822 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for bilateral hearing
loss.
3. Entitlement to service connection for the residuals of
fractured kneecaps, to include body pains.
4. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
5. Entitlement to service connection for an acquired
psychiatric disability other than PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Acosta, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1964 to April
1972.
These matters come before the Board of Veterans’ Appeals
(Board) on appeal from an August 1994 rating decision of the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO).
The issue of entitlement to service connection for “body
pains” has been incorporated into the issue of entitlement to
service connection for the residuals of fractured kneecaps
pursuant to the veteran’s statements in an undated attachment
to his Notice of Disagreement (NOD) of November 1994.
The issue of entitlement to service connection for a skin
disability due to Agent Orange exposure is not the subject of
the present decision, as it is not currently on appeal before
the Board, notwithstanding the veteran’s representative’s
having listed it as such in his informal hearing presentation
of June 1997.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to be service-
connected for the above disabilities, as they all had their
onset during service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
these matters, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed in his
initial duty to submit well-grounded claims for service
connection.
FINDINGS OF FACT
1. “Abnormal” blood pressure readings were noted upon
induction. Hypertension, however, was not diagnosed during
service or within the 1-year presumptive period following
active service.
2. The currently-manifested hypertension has not been shown
to be causally related to service.
3. A disability due to impaired hearing was not manifested
during service nor within the 1-year presumptive period
following active service.
4. The first evidence of record of a disability due to
impaired hearing was dated in March 1994, almost 22 years
after the veteran’s separation from active duty.
5. The currently-manifested disability due to impaired
hearing has not been shown to be causally related to service.
6. No evidence of fractured kneecaps during service or of
currently-manifested residuals of such unverified incident,
to include alleged body pains, is of record.
7. The veteran was not engaged in combat with the enemy
during service.
8. Other than unverified general allegations of having been
harassed during service, having had to destroy a village and
having lost a friend in that claimed incident, no specific
stressors have been claimed to have occurred during service.
9. PTSD has not been diagnosed.
10. A currently-manifested psychiatric disability diagnosed
as generalized anxiety state and depression has not been
shown to be causally related to service.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
hypertension is not well-grounded. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R. §§ 3.303,
3.304, 3.307, 3.309 (1996).
2. The claim of entitlement to service connection for
bilateral hearing loss is not well-grounded. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 5107(a) (West 1991); 38 C.F.R.
§§ 3.303, 3.304, 3.307, 3.309, 3.385 (1996).
3. The claim of entitlement to service connection for the
residuals of fractured kneecaps, to include body pains, is
not well-grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304 (1996).
4. The claim of entitlement to service connection PTSD is
not well-grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304 (1996).
5. The claim of entitlement to service connection for an
acquired psychiatric disability other than PTSD is not well-
grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991);
38 C.F.R. §§ 3.303, 3.304 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question that must be resolved at the outset of
the analysis of any issue is whether each one of the
appellant’s claims is well-grounded; that is, whether it is
plausible, meritorious on its own, or otherwise capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). VA’s statutory “duty to assist” under 38 U.S.C.A.
§ 5107(a) (West 1991) does not arise until there is a well-
grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55
(1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The statutory
prerequisite of submitting a well-grounded claim reflects a
policy that implausible claims should not consume the limited
resources of the VA and force into even greater backlog and
delay claims which --as well-grounded-- require adjudication.
Grivois v. Brown, 6 Vet.App. 136, 139 (1994).
An appellant has, by statute, the duty to submit evidence
that a claim is well-grounded. The evidence must “justify a
belief by a fair and impartial individual” that the claim is
plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such
evidence is not submitted, the claim is not well-grounded,
and the initial burden placed on the appellant is not met.
Tirpak v. Derwinski, 2 Vet.App. 609 (1992).
In order for a claim for service connection to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury during service (lay or
medical evidence), and of a nexus between the inservice
injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995).
Evidentiary assertions by the appellant must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet.App. 19, 21 (1993).
Where the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is "plausible" or "possible" is required. See
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); see, also,
Johnson v. Brown, 8 Vet.App. 423, 426 (1995). Entitlement
for service-connected disease or injury is limited to cases
where such incidents have resulted in a disability. In the
absence of proof of a present disability there can be no
valid claim. Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992).
Service connection is warranted for disability resulting from
personal injury suffered or disease contracted in the line of
duty, or for aggravation of a pre-existing injury suffered or
disease contracted in the line of duty in the active military
service during a period of war. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. §§ 3.303, 3.304 (1996).
Additionally, service connection for hypertension and a
disability due to impaired hearing is warranted on a
presumptive basis if either disability is shown to have become
manifest to a degree of 10 percent or more within 1 year after
discharge, even though there is no evidence of such disease
during service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113
(West 1991); 38 C.F.R. §§ 3.307(a), 3.309(a) (1996).
First Issue
Entitlement to service connection for hypertension:
The veteran contends that he is entitled to be service-
connected for hypertension, as this disability had its onset
during service. After a review of the evidentiary record,
however, the Board finds that this claim is not well
grounded.
The veteran’s report of medical examination for induction,
dated on March 3, 1964, shows blood pressure readings of
140/86, 162/80 and 154/90 and an initial disqualification of
the veteran due to “abnormal b[lood] p[ressure readings].”
It also shows that the veteran was thereafter re-tested and
was deemed qualified for enlistment after blood pressure
readings of 156/100 and 140/86 were obtained 9 days later.
The veteran’s service medical records also show blood
pressure readings of 120/60, recorded in January 1965,
160/100, recorded in February 1970, and 178/90, recorded in
May 1970. Finally, his report of medical examination for
separation, which is undated, but was possibly produced
sometime around April 1972, shows a blood pressure reading of
156/90 and a normal clinical evaluation of his heart and
vascular system.
Hypertension was never diagnosed during service or within the
1-year presumptive period immediately following the veteran’s
separation from active duty.
The report of a VA medical examination, dated in November
1995, contains the first and only hypertension assessment of
record and a blood pressure reading of 152/86. More recent
VA medical reports, both dated in February 1996, reveal blood
pressure readings of 140/88 and 140/90.
As shown above, the only medical assessment of hypertension
in the veteran’s claims folder was recorded in November 1995,
more than 23 years after service. The lack of a diagnosis of
hypertension on induction precludes the Board from
considering the veteran’s claim on an aggravation basis.
Additionally, the lack of competent evidence of a nexus, or
causal relationship, between a present disability
(hypertension) and inservice occurrences or events makes the
veteran’s claim for service connection invalid, not plausible
and therefore not well grounded. This translates into a lack
of a duty to further assist him and also means that the Board
has not acquired jurisdiction over his claim. See, Boeck, at
17. Accordingly, his appeal must be denied.
No evidence that would indicate the existence of some degree
of probability that the veteran will be able to obtain the
additional information needed to complete his application is
of record. Therefore, VA’s obligation to further advise him
with regard to the completion of his application for service
connection has not arisen.
Second Issue
Entitlement to service connection for bilateral hearing loss:
The veteran contends that he is entitled to be service-
connected for bilateral hearing loss, as this disability had
its onset during service. The claim is not well grounded.
For VA purposes, bilateral hearing loss, or a disability due
to impaired hearing, is defined follows:
“Impaired hearing will be considered to
be a disability when the auditory
threshold in any of the frequencies 500,
1000, 2000, 3000, 4000 Hertz is 40
decibels or greater; or when the auditory
thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or
4000 Hertz are 26 decibels or greater; or
when the speech recognition scores using
the Maryland CNC Test are less than 94
percent.”
38 C.F.R. § 3.385 (1996).
To establish service connection for hearing loss, the veteran
is not obligated to show that hearing loss was present during
service. Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992).
(If evidence should sufficiently demonstrate a medical
relationship between the veteran’s in-service exposure to
loud noise and his current disability, it would follow that
the veteran incurred an injury in service;...)
Moreover, if the veteran had “normal” hearing upon his
discharge, but developed hearing loss measurably to the
criteria stated in 38 C.F.R. § 3.385 (1996), and if he can
now establish a causal relationship between his hearing loss
and service, service-connected benefits are to be granted.
In this regard, the Court has stated that when the
audiometric test results at separation do not meet the
regulatory criteria set forth at 38 C.F.R. § 3.385 (1996) for
establishing a disability due to impaired hearing at that
time, the veteran may nevertheless establish service
connection for a current hearing disability by submitting
evidence that the current disability is causally related to
service. Hensley v. Brown, 5 Vet.App. 155, 160 (1993).
The veteran’s March 1964 report of medical examination for
induction shows a normal clinical evaluation of his ears. It
also contains the following measures of decibels of hearing
loss, which have been converted by the Board to the current
ISO/ANSI standards:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
-
5
LEFT
15
10
15
-
10
A service medical record, dated in January 1965, shows,
again, a normal clinical evaluation of the veteran’s ears and
contains the following measures of decibels of hearing loss,
also converted to the current ISO/ANSI standards:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
-
5
LEFT
15
10
10
-
5
Another service medical record, dated in May 1970, shows,
again, a normal clinical evaluation of the veteran’s ears and
contains the following measures of decibels of hearing loss:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
-
20
LEFT
0
0
5
-
10
The veteran’s undated report of medical examination for
separation shows, again, a normal clinical evaluation of his
ears and contains the following measures of decibels of
hearing loss:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
35
30
LEFT
10
10
10
20
15
The veteran’s reports of medical history of record, dated in
March 1964 and January 1965, show that he denied ever having
had or currently having ear problems.
As shown above, no evidence of a disability due to impaired
hearing becoming manifest during service is of record.
Additionally, no evidence of such a disability becoming
manifest to a degree of 10 percent or more within the 1-year
period immediately after the veteran’s separation from active
service is of record.
The post-service competent evidence showing the degrees of
hearing loss consists of the reports of VA audiological
evaluations conducted in March and August 1994, which reveal
the following measures of decibels of hearing loss:
March
1994
HERTZ
500
1000
2000
3000
4000
RIGHT
10
20
25
45
55
LEFT
10
15
20/15
35
40
Speech discrimination scores were 92 and 96 percent for the
right and left ears, respectively.
August
1994
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
20
45
50
LEFT
10
15
15
35
40
Speech discrimination scores were 94 percent, bilaterally.
The above 2 pieces of competent evidence, dated approximately
22 years after the veteran’s separation from active duty,
reveal the current manifestation of a disability due to
impaired hearing. The veteran, however, has failed to submit
competent evidence of a nexus, or causal relationship between
the present disability and inservice occurrences or events.
His claim for service connection is invalid, not plausible
and therefore not well grounded. This translates into a lack
of a duty to further assist him and also means that the Board
has not acquired jurisdiction over his claim. See, Boeck, at
17.
Third Issue
Entitlement to service connection for the residuals of
fractured kneecaps,
to include body pains:
The veteran contends that he is entitled to be service-
connected for the residuals of fractured kneecaps, to include
body pains. After a review of the evidentiary record,
however, the Board finds that this claim is not well
grounded.
The veteran’s service medical records show no evidence of
fractures to the kneecaps or related complaints (to include
body pains) or medical treatment during service. The reports
of medical examination of record, to include the undated
report for separation, all show normal clinical evaluations
of the veteran’s lower extremities. Similarly, his 2 reports
of medical history show that he denied ever having had or
currently having a “trick” or locked knee and that he never
complained of having injured his kneecaps during service and
having residuals of that claimed injury.
As for the post-service pieces of medical evidence in the
record, the Board notes that none of them reveals the current
manifestation of residuals of the unverified inservice
fracture of the knees, to include the alleged incidents of
body pains. It is also noted that, while the veteran
indicated in his undated attachment to his November 1994 NOD
that he would be submitting private medical evidence in
support of his claims, he has failed to do so,
notwithstanding his having been requested by the RO to
produce this evidence in January 1997.
The veteran has failed to submit competent evidence of a
present disability and of a nexus, or causal relationship
between the claimed present disability and inservice
occurrences or events. His claim for service connection is
invalid, not plausible and therefore not well grounded. This
translates into a lack of a duty to further assist him and
also means that the Board has not acquired jurisdiction over
his claim. See, Boeck, at 17.
Fourth Issue
Entitlement to service connection for PTSD:
The veteran contends that he is entitled to be service-
connected for PTSD, as it had its onset during service. The
claim is not well grounded.
Eligibility for a PTSD service-connection award requires the
presence of the following 3 elements: (1) a current, clear
medical diagnosis of PTSD; (2) credible supporting evidence
that the claimed inservice stressor actually occurred; and
(3) medical evidence of a causal nexus between the current
symptomatology and the specific claimed inservice stressor.
38 C.F.R. § 3.304(f) (1996); see also Cohen v. Brown, No.
94-661, slip op. at 13 (U.S. Vet.App. Mar 7, 1997).
The burden placed on the veteran’s shoulders to prove the
actual occurrence of the claimed stressors is significantly
reduced if there is competent evidence of actual combat with
the enemy. 38 U.S.C.A. § 1154(b) (West 1991). A factual
finding to that effect, however, first needs to be made by
the Board for said reduced threshold to take place. Irby v.
Brown, 6 Vet.App. 132, 136 (1994); see, also, Zarycki v.
Brown, 6 Vet.App. 91, 98 (1993). If the Board finds that the
veteran did not engage in combat with the enemy, credible
supporting evidence from any source showing that his claimed
inservice stressor actually occurred would be required for
him to prevail. Under such circumstances, his lay testimony
regarding the stressors would thus be insufficient, standing
alone, to establish service connection. See, 38 C.F.R.
§ 3.304(f) (1996), and also, Moreau v. Brown, 9 Vet.App. 389,
394-395 (1996), and Doran v. Brown, 6 Vet.App. 283, 290
(1994).
VA’s duty to assist is not always a one-way street. If a
veteran desires help, especially in verifying stressors, he
or she must provide the factual data necessary to conduct the
required search. Wood v. Derwinski, 1 Vet.App. 190, 193
(1991).
The veteran’s service medical records contain no evidence of
combat action. They also contain no PTSD diagnoses during
service.
With regard to PTSD stressors, the veteran has claimed that
he was “harrassed [sic] a good deal of the time” during his
“combat experience” and that perhaps his most traumatic
experience was when he was ordered to destroy a village, an
incident in which he reportedly lost a friend. This claimed
stressful incident could not be verified due to its vagueness
and lack of specificity.
Further inquiry as to the above claimed stressors is not
necessary, however, as PTSD has never been diagnosed.
The lack of competent evidence of inservice stressors, a
diagnosis of PTSD and a nexus between this disability and
inservice occurrences or events makes the present claim for
service connection invalid, not plausible and therefore not
well grounded. This translates into a lack of a duty to
further assist the veteran and also means that the Board has
not acquired jurisdiction over his claim. See, Boeck, at 17.
Fifth Issue
Entitlement to service connection for an acquired psychiatric
disability
other than PTSD:
The veteran contends that the recently-diagnosed psychiatric
disabilities had their onset during service and that,
accordingly, service connection for these disabilities is
warranted. After a review of the evidentiary record,
however, the Board finds that this claim is not well
grounded.
The veteran’s service medical records contain no evidence of
the manifestation of a psychiatric disability during service.
In fact, the reports of medical examination of record, to
include the one prepared on separation, all show normal
psychiatric evaluations and the reports of medical history
show that the veteran denied ever having had or currently
having frequent trouble sleeping, frequent or terrifying
nightmares, depression or excessive worry and nervous trouble
of any sort.
The first piece of medical evidence in the record showing the
manifestation of a psychiatric disability consists of the
report of a VA psychiatric examination, dated in August 1994,
more than 22 years after the veteran’s separation from active
duty, showing a diagnosis of generalized anxiety state and
depression, mildly symptomatic. Additionally, VA outpatient
medical records dated in February 1996 contain an impression
of depression and an assessment of target symptoms of
depression, respectively.
The lack of competent evidence of a nexus between the
diagnosed generalized anxiety state and depression and
inservice occurrences or events makes the present claim for
service connection invalid, not plausible and therefore not
well grounded. This translates into a lack of a duty to
further assist the veteran and also means that the Board has
not acquired jurisdiction over his claim. See, Boeck, at 17.
ORDER
1. Service connection for hypertension is denied.
2. Service connection for bilateral hearing loss is denied.
3. Service connection for the residuals of fractured
kneecaps, to include body pains, is denied.
4. Service connection for PTSD is denied.
5. Service connection for an acquired psychiatric disability
other than PTSD is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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